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This post was authored by Otten Johnson summer law clerk Matt Bender. Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Two weeks ago, a federal court in California dismissed a plaintiff’s claim that casino gaming was a First Amendment-protected activity.

Wared Alfarah, the plaintiff in this case, ran a retail business selling e-cigarette products. To encourage customers to linger around his store, Mr. Alfarah offered pay-to-play games where the player tried to stop a computer cursor on a specific bar in a series of rotating bars. If done correctly, the player won a random amount of prize money. Although the location of the bars was randomized, the player’s “skill” allegedly determined his success.

In September of 2015, several Soledad police officers came to Mr. Alfarah’s store, determined that the games were illegal gambling, and seized the account cards necessary to operate the machines. However, no criminal charges were ever filed against Mr. Alfarah.

Mr. Alfarah sued the city, seeking injunctive relief on several constitutional grounds. Among other things, Mr. Alfarah argued that the First Amendment granted a right to offer these “games of skill.” The court disagreed. In an order granting the city’s Motion to Dismiss, the court found that offering the games was not protected speech—it was not speech at all. In reaching this conclusion, the court cited There to Care, Inc. v. Commissioner of Indiana Department of Revenue, a Seventh Circuit case that held that “bingo is an activity, not protected commercial speech.” The court additionally pointed out that the gaming machines were not advertisements meant to “propose a commercial transaction,” and they may not even have been legal, although the court refused to opine on this question of California law.